DCIT, Circle-6(1), Hyderabad V. Shri K Srinivas Naidu, Hyderabad

MA 45/HYD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0243 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-05-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 06-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMISHA S GUPT

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B : HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MA.NO. 45/HYD/2013 ARISING OUT OF ITA.NO.871/HYD/2010 - ASSESSMENT YEAR 2006-2007 DCIT, C IRCLE 6 (1) HYDERABAD. VS. SHRI K.SRINIVAS NAIDU HYDERABAD PAN ADOPK5782E (APPL IC ANT) (RESPONDENT) APPL IC ANT BY: SMT. AMISHA S. GUPT RESPONDENT BY: - NONE - DATE OF HEARING: 03 .0 5 .2013 DATE OF PRONOUNCEMENT: 10 .0 5 .2013 ORDER PER SMT. ASHA VIJAYARAGHAVAN, J.M. THIS MA HAS BEEN FILED BY THE REVENUE CONTENDING I NTER ALIA THAT THE HONBLE ITAT VIDE ITS ORDER IN ITA.871/HYD/2010 RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER REGARDING DISA LLOWANCE OF HIRE CHARGE PAYMENTS AMOUNTING TO RS.58,30,921/- UNDER SECTION 40(A)(IA), WITH A DIRECTION TO DECIDE THE ISSUE IN THE LIGHT OF DECIS ION OF SPECIAL BENCH OF THE VIZAG TRIBUNAL IN THE CASE OF MERLYN SHIPPING T RANSPORT & OTHERS 136 ITD 23 (SB) (VIZAG). THE HONBLE HIGH COURT OF ANDHRA PRADESH PASSED INTERIM SUSPENSION ORDER ON 08.10.2012 SUSPE NDING THE SAID SPECIAL BENCH DECISION IN THE CASE OF MERLYN SHIPPI NG AND TRANSPORT. IN VIEW OF THE ABOVE, THE REVENUE PRAYED THAT THE HON BLE ITAT MAY ADJUDICATE THE ISSUE AFRESH. 2. DURING THE COURSE OF HEARING, THE LEARNED DR SUB MITTED THAT THE CASE IS NOT SUPPORTED BY THE DECISION OF T HE SPECIAL 2 BENCH DECISION OF THE ITAT, VIZAG TRIBUNAL IN THE C ASE OF MERLYN SHIPPING TRANSPORT & OTHERS 136 ITD 23 (SB) (VIZAG) AS THIS JUDGMENT HAS BEEN OVERRULED BY THE HONBLE KOLKATA HIGH COURT IN THE CASE OF CIT, KOLKATA-XI VS. CRESCENT EXPORT SYNDICATES VIDE ITA NO. 20 OF 2013, G.A.NO. 190 OF 2003, JUDGM ENT DATED 3 RD APRIL, 2013 WHEREIN IT WAS HELD THAT THE VIEWS EXP RESSED IN THE CASE OF MERLYIN SHIPPING AND TRANSPORTS WERE NO T ACCEPTABLE AND THE JURISDICTIONAL HIGH COURT ALSO P ASSED INTERIM SUSPENSION OF MERLYN SHIPPING TRANSPORT & O THERS BY ORDER DATED 08.10.2012. THE KOLKATA HIGH COURT HA S FOLLOWED THE SAID JUDGMENT IN THE CASE OF CIT VS. MD. JAKIR HOSSAIN MODAL VIDE ITAT NO. 31 OF 2003, G.A. NO. 320 OF 201 3, JUDGMENT DATED 4 TH APRIL, 2013. THEREFORE, THE LEARNED DR REITERATED FOR ADJUDICATION OF THE ISSUE AFRESH. 3. WE HAVE HEARD THE LEARNED D.R. AND PERUSED THE R ECORD. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE FIND THAT TH E HONBLE GUJARAT HIGH COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. 262 ITR 146 HELD THAT IN THE ABSENCE OF DECISI ON OF THE JURISDICTIONAL HIGH COURT, THE SPECIAL BENCH DECISI ON IN THE CASE OF M/S. MERLYIN SHIPPING AND TRANSPORT IN ITA.NO.477/V IZAG/2008 HAS TO BE FOLLOWED. IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA) THE GUJARAT HIGH COURT HELD WHILE SUMMING-U P AT PAGE 162 AS FOLLOWS : (F) NON-CONSIDERATION OF A JUDGMENT OF THE JURISDI CTIONAL HIGH COURT WOULD ALWAYS CONSTITUTE A MISTAKE APPARENT FR OM THE RECORD, REGARDLESS OF THE JUDGMENT BEING RENDERED P RIOR TO OR SUBSEQUENT TO THE ORDER PROPOSED TO BE RECTIFIED. HOWEVER, IN THIS CASE, THE A.P. HIGH COURT HAS NOT YET RENDERED ITS JUDGMENT. 5. WE FIND THAT IN THE CASE OF SAGAR COOPERATIVE CE NTRAL BANK LTD. VS. CIT 186 ITR 292 THE MADHYA PRADESH HIGH COURT H AS DEALT WITH THE 3 ISSUE THAT AS LONG AS THE MATTER IS PENDING CONSIDE RATION BEFORE THE SUPREME COURT AND IS NOT SETTLED THERE IS A DEBATAB LE POINT OF LAW INVOLVED AND HENCE, THE ORDER OF RECTIFICATION IS N OT VALID. IN THE CASE OF SAGAR COOPERATIVE CENTRAL BANK LTD. (SUPRA) FIRSTLY , THERE WAS NO ORDER BY THE HIGH COURT ON THE DATE WHEN THE APPELLATE OR DER OF THE TRIBUNAL WAS PASSED AND SECONDLY ON THE DATE WHEN THE TRIBUN AL PURPORTED TO RECTIFY THE SO CALLED MISTAKE APPARENT FROM THE REC ORD THE MATTER WAS ALREADY PENDING BEFORE THE SUPREME COURT TO BE RESO LVED AND SETTLED BY THAT COURT. THEREFORE, IT CANNOT BE SAID THAT THE P OINT IS NOT DEBATABLE AND IT INVOLVES A LONG DRAWN PROCESS OF REASONING T O ESTABLISH THAT THERE WAS AN ERROR APPARENT IN THE TRIBUNALS ORDER. HENC E, IT WAS HELD THAT THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS TO BE DISMISSED. 6. IN THE INSTANT CASE BEFORE US, THOUGH THE A.P. H IGH COURT HAS PASSED INTERIM SUSPENSION ON 8.10.2012 AND THE KOLK ATA HIGH COURT HAS PASSED THE ORDER INFAVOUR OF THE REVENUE, THE M ATTER IS STILL NOT DECIDED BY THE A.P. HIGH COURT BEING THE JURISDICTI ONAL HIGH COURT AND HENCE, APPLYING THE RATIO OF THE DECISION IN THE CA SE OF SAGAR COOPERATIVE CENTRAL BANK LTD. VS. CIT 186 ITR 292 ( SUPRA) THE REVENUES MISCELLANEOUS APPLICATION THAT THERE IS A MISTAKE APPARENT ON RECORD REQUIRING ACTION UNDER SECTION 254 (2) O F THE I.T. ACT IS TO BE DISMISSED. HOWEVER, BOTH THE PARTIES ARE AT LIBERTY TO FILE M.AS AT SUCH TIME WHEN THE DECISION IS RENDERED BY THE A.P. HIGH COURT. 7. IN THE RESULT, MA OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH MAY, 2013. SD/- SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER ( ASHA VIJAYARAGHAVAN ) JUDICIAL MEMBER HYDERABAD, DATED THE 10 TH MAY, 2013 VBP/- 4 COPY TO 1. DCIT, CIRCLE 6 (1), 7 TH FLOOR, D BLOCK, IT TOWERS, MASAB TANK, HYDERABAD. 2. SHRI K.SRINIVAS NAIDU, PR OP. VNS TRANSPORT, D.NO.8 - 2 - 268, ARORA COLONY, ROAD NO.3, BANJARA HILLS, HYDERABAD PAN ADOPK5782E 3. CIT(A), GUNTUR 4. CIT - III , HYDERABAD 5. DR B BENCH, ITAT, HYDERABAD